I spent much of Saturday trying to reconcile two very different approaches to justice meted out by the Obama Administration.
The first is old (mid-December) news: British bank HSBC launders money for at least a decade and is fined four weeks earnings. I learned about it Friday from The Daily Show.
… for years, HSBC had also moved tainted money from Mexican drug cartels and Saudi banks with ties to terrorist groups.
Those findings echo those of a Congressional report, issued in July, which said that between 2001 and 2010, HSBC exposed the American “financial system to money laundering and terrorist financing risks.” Prosecutors and Congressional investigators were also alarmed by indications that senior HSBC officials might have been complicit in the illegal activity and that the bank did not tighten its lax controls against money laundering even after repeated urgings from federal officials.
[Assistant AG Lanny] Breuer admitted that drug dealers would sometimes come to HSBC’s Mexican branches and “deposit hundreds of thousands of dollars in cash, in a single day, into a single account, using boxes designed to fit the precise dimensions of the teller windows.”
This bears repeating: in order to more efficiently move as much illegal money as possible into the “legitimate” banking institution HSBC, drug dealers specifically designed boxes to fit through the bank’s teller windows.
That they are not being prosecuted is cowardice and pure corruption, nothing else. And by approving this settlement, Breuer removed the government’s moral authority to prosecute anyone for any other drug offense.
How can anyone other than a banking executive look at this action on the part of the U.S. government and say, “There is justice here; this is fair and reasonable.”
They can’t. Because it’s not.
That leads me to Aaron Swartz, a talented and extraordinary young man, a technologist and activist. At age 14, he helped develop RSS, the technology that underpins the web’s information subscription system.
At age 26, he killed himself this weekend.
Here’s author and activist Cory Doctorow:
Aaron accomplished some incredible things in his life. He was one of the early builders of Reddit…got bought by Wired/Conde Nast, engineered his own dismissal and got cashed out, and then became a full-time, uncompromising, reckless and delightful shit-disturber.
Aaron legally obtained about 20 million pages of documents from PACER (Public Access to Court Electronic Records), the repository for federal judicial documents.
The government shut down the free library program, and Mr. Malamud feared that legal trouble might follow even though he felt they had violated no laws. As he recalled in a newspaper account, “I immediately saw the potential for overreaction by the courts.” He recalled telling Mr. Swartz: “You need to talk to a lawyer. I need to talk to a lawyer.”
Mr. Swartz recalled in a 2009 interview, “I had this vision of the feds crashing down the door, taking everything away.” He said he locked the deadbolt on his door, lay down on the bed for a while and then called his mother.
The federal government investigated but did not prosecute.
Aaron posted the resultant FBI file online.
Open access advocates argue that scholarly and scientific literature — much of it created on the public’s dime — should be “available online, free of charge and free of most copyright restrictions.”
Research demonstrates that openly accessible publications are cited by others more often than research blocked by digital lock-and-key. This spread of knowledge is good for society as a whole.
Yet the DOJ, in the person of Carmen M. Ortiz, U.S. Attorney for the District of Massachusetts, indicted Aaron, charging him with stealing 4 million documents from MIT and JSTOR.
If convicted, Aaron faced up to 35 years in prison and $1 million in fines.
For a victimless crime where more than half of the information was in the public domain and where the “stolen property” had been returned.
For a “crime” that an expert witness explains clearly and in direct opposition to much of the DOJ case.
I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail.
At the time of Aaron’s actions, the JSTOR website allowed an unlimited number of downloads by anybody on MIT’s 18.x Class-A network.
Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.
If I had taken the stand as planned and had been asked by the prosecutor whether Aaron’s actions were “wrong”, I would probably have replied that what Aaron did would better be described as “inconsiderate”. In the same way it is inconsiderate to write a check at the supermarket while a dozen people queue up behind you or to check out every book at the library needed for a History 101 paper. It is inconsiderate to download lots of files on shared wifi or to spider Wikipedia too quickly, but none of these actions should lead to a young person being hounded for years and haunted by the possibility of a 35 year sentence.
You have to ask yourself: who in the Department of Justice did Aaron embarrass so badly back in 2008? Or which academic journal publisher has an “in” with the U.S. government?
Ironically, JSTOR announced last week that it is offering limited, free access via a “Register and Read” program.
Let me close with this observation from lawyer Lawrence Lessig:
Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.
He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.
How can anyone other than a publishing executive look at this action on the part of the U.S. government and say “that’s fair and reasonable.”
They can’t. Because it’s not.
The mission of the Department of Justice is, in part, “to seek just punishment for those guilty of unlawful behavior, and to ensure fair and impartial administration of justice for all Americans.”
They failed on both counts here.
Our public legal system — the one that is supposed to be looking out for us, the citizens of the United States — kowtowed to a British corporation while grinding its heel into a 26-year-old idealist.
We should be ashamed.
We live in a democracy. Tell your friends but just as importantly, tell your Congressmen and our President.
The DOJ was wrong, not once, but twice.
Only we can make sure it doesn’t happen again.